Abstract
This doctoral thesis examines the following main research question:
To what extent can Dutch medical liability law be said to have the intended effect of influencing behaviour?
This thesis attempts to answer this main question in three parts: the legal framework, existing empirical research, and new empirical research, consisting of a quantitative
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study (questionnaires) and a qualitative study (interviews).
Civil medical liability law, medical disciplinary law and medical criminal law form the legal framework for this study. A study of the literature, case law and parliamentary documents reveal that, in all three areas of the law, prevention can be defined as a key objective. In this, a distinction can be drawn between general prevention and special prevention. The objectives of general and special prevention are based on two important assumptions. Firstly, that healthcare providers are aware of the norms that apply to them. Secondly, that the areas of law described are premised on a ‘positive’ influence on behaviour. In other words, the effect on behaviour is such that it ensures that people observe the prescribed norms. In that sense, therefore, they should never act in a defensive manner. These two assumptions form the main theme of the empirical section of the thesis.
The question of the extent to which doctors know about medical liability law is of relevance to the first assumption described above. The limited research that is available follows the same basic line: although healthcare providers often have a general awareness of the norms that apply, the more specific the norms become, the less familiar they are with them. The empirical research for this thesis, also reflects this basic line. Doctors who completed the questionnaires generally appear perfectly capable of gauging whether there has been a breach of the norm (according to the court) in cases presented to them. However, there does seem to be a strong degree of uncertainty. The interviews show that most respondents understand the general elements of the various areas of law, but do not have a more detailed awareness of medical liability law.
The issue of whether doctors act defensively because of their fear of medical liability law is of relevance to the second assumption described above. The existing empirical studies show a varied picture. In general, most perception studies tend to conclude that defensive behaviour occurs to a significant extent, whereas the studies using hard data often fail to identify any strong link between liability and behaviour. In studies that apply a combination of methods, there are signs that doctors have a tendency to overestimate the liability risks that apply to them. There are also indications that a limited knowledge of the law results in an increase in defensive behaviour.
The empirical study for this thesis builds on these findings. The questionnaires show that there is a link between a person's assessment of the risk of being found to have breached the norms and the extent to which defensive behaviour is reported. This link means that a ‘correct’ assessment of the risk is associated with less defensive behaviour. In this light, the uncertainty noted above with regard to the exact definition of applicable norms becomes problematical, as does the fact that this uncertainty can be exacerbated by the significant role played by open norms in medical liability law.
The information described above leads one to the observation that Dutch medical liability law achieves the intended effect of influencing behaviour to a limited extent only.
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